| Bowen v Saratoga Springs City School Dist. |
| 2011 NY Slip Op 07344 [88 AD3d 1144] |
| October 20, 2011 |
| Appellate Division, Third Department |
| Lena M. Bowen et al., Respondents, v Saratoga Springs City SchoolDistrict et al., Appellants. |
—[*1] The Mills Law Firm, L.L.P., Clifton Park (Christopher K. Mills of counsel), for appellants. Horigan, Horigan & Lombardo, P.C., Amsterdam (Peter M. Califano of counsel), forrespondents.
Malone Jr., J. Appeal from an order of the Supreme Court (Krogmann, J.), entered August12, 2010 in Saratoga County, which, among other things, partially denied defendants' motion forsummary judgment dismissing the complaint.
Plaintiff Lena A. Bowen (hereinafter plaintiff) and her husband, derivatively, commencedthis action seeking to recover damages for injuries she allegedly suffered as a result of a motorvehicle accident in which her vehicle collided with a school bus owned by defendant SaratogaSprings City School District and driven by defendant Donald W. Allen. Defendants thereaftermoved for summary judgment, arguing that plaintiff had not suffered a serious injury within themeaning of Insurance Law § 5102 (d). Although Supreme Court partially granted themotion, dismissing certain of plaintiffs' claims, the court denied the motion with respect toplaintiffs' 90/180-day category of serious injury. Defendants appeal.
Defendants' burden on their motion for summary judgment dismissing plaintiffs' complaintwas to establish, through competent medical evidence, that plaintiff did not sustain a seriousinjury as a result of the motor vehicle accident (see Insurance Law § 5102 [d];§ 5104 [a]; Motrie v Reid, 45AD3d 941, 942 [2007]). The medical evidence submitted by defendants, including theaffidavit of an orthopaedic surgeon, established that, immediately following the [*2]accident in June 2006, plaintiff underwent an MRI, which revealeda mild disc desiccation at L5-S1, a possible annular tear at L4-5, but no extrusion, central orlateral stenosis, and degenerative disc disease at C5-6. Plaintiff, who has a lengthy history ofsevere back and neck pain and fibromyalgia, treated with many physicians after the accident,including a neurosurgeon, who ultimately concluded that all of the objective medical testingperformed subsequent to the accident was negative and that plaintiff had "hysterical conversiondisorder" and "excessive somatization." The orthopaedic surgeon noted that another physicianwho reviewed plaintiff's medical records in August 2007 concluded that plaintiff's subjectivecomplaints of pain were disproportionate to, and could not be explained by, the MRI findings.Thus, based on the information in plaintiff's history, the orthopaedic surgeon opined thatplaintiff's subjective complaints of pain subsequent to the accident were not supported byobjective medical evidence and were the result of preexisting and/or degenerative conditions.
This evidence was sufficient to shift the burden to plaintiffs to submit objective proof of "amedically determined injury or impairment of a non-permanent nature" that prevented her "fromperforming substantially all of the material acts which constitute [her] usual and customary dailyactivities for not less than" 90 of the 180 days immediately following the accident (InsuranceLaw § 5102 [d]; see Clark vBasco, 83 AD3d 1136, 1139-1140 [2011]). To that end, plaintiffs submitted the affidavitof plaintiff's treating chiropractor, who described his treatment of plaintiff after the accident andstated that, for more than six months after the accident, plaintiff experienced decreased range ofmotion in her neck and back and was unable to return to work or perform household activities.However, his qualitative assessment is not supported by his findings based upon anycontemporaneous quantitative testing.[FN*]Although the record contains the results of objective range of motion testing performed byanother physician one month after the accident, that physician did not compare the results of hisexamination to plaintiff's pre-accident levels or opine that the injuries that caused the reducedranges of motion were of the type that prevented plaintiff from performing her customary dutiesand activities. Moreover, that physician did not definitively link plaintiff's alleged injuries to theaccident, instead concluding that plaintiff's symptoms were related to either an acute cervicalsprain as a result of the accident or a reemergence of her fibromyalgia. Finally, although thechiropractor did instruct plaintiff to limit her activities after the accident, and plaintiff testified tosuch limitations at her deposition, the limitations were imposed by the chiropractor based uponplaintiff's subjective complaints of pain as opposed to objective medical evidence. Thus, thisevidence is insufficient to establish the existence of a serious injury (see Vargas v Tomorrow Travel & Tour,Inc., 74 AD3d 1626, 1627-1628 [2010]). Based on the foregoing, because plaintiffs didnot establish the existence of a material issue of fact, defendants were entitled to summaryjudgment dismissing plaintiffs' claim under the 90/180-day category of serious injury.
Mercure, J.P., Rose, Kavanagh and Garry, JJ., concur. Ordered that the order is modified, onthe law, with costs to defendants, by reversing so much thereof as partially denied defendants'motion; motion granted in its entirety, summary judgment awarded to defendants dismissing the90/180-day category of serious injury and complaint dismissed; and, as so modified, affirmed.
Footnote *: Although the chiropractordescribes quantitative results of range of motion testing, the results are "too remote to raise anissue of fact as to whether the limitations were caused by the accident" because he did notperform those tests until more than two years after the accident (Lopez v Simpson, 39 AD3d 420,421 [2007]).